All things freshwater: news, analysis, humor, reviews, and commentary from Michael E. 'Aquadoc' Campana, hydrogeologist, hydrophilanthropist, Professor of Hydrogeology and Water Resources Management in the Geography Program of the College of Earth, Ocean, and Atmospheric Sciences (CEOAS) at Oregon State University and Emeritus Professor of Hydrogeology at the University of New Mexico. He is Past President of the American Water Resources Association (AWRA), Past Chair of the Scientists & Engineers Division of the National Ground Water Association (NGWA), Past President of the nonprofit NGWA Foundation and President and Founder the nonprofit Ann Campana Judge Foundation, an organization involved with WaSH (Water, Sanitation, and Hygiene) in Central America. He serves on the Steering Committee of the Global Water Partnership (GWP). CYA statement: with the exception of guest posts, the opinions expressed herein are solely those of Michael E. Campana and not those of CEOAS, Oregon State University, ACJF, AWRA, NGWA, GWP, my spouse Mary Frances, or any other person or organization.

Texas Agriculture Law BlogDon't let the name fool you - there are lots of water issues in agriculture and Tiffany Dowell of Texas A&M University does a fabulous job with this important Internet resource. Give it a read - I do every day!

The Way of WaterDr. Jennifer Veilleux records her fieldwork, research, and thoughts about water resources development and management, indigenous rights, ethics, and a host of other issues.

Thirsty in SuburbiaGayle Leonard documents things from the world of water that make us smile: particularly funny, amusing and weird items on bottled water, water towers, water marketing, recycling, the art-water nexus and working.

This Day in Water HistoryMichael J. 'Mike' McGuire, engineer extraordinaire, NAE member, and author of 'The Chlorine Revolution', blogs about historical happenings in the fields of drinking water and wastewater keyed to calendar dates.

Watershed Moments: Thoughts from the HydrosphereFrom Sarah Boon - rediscovering her writing and editing roots after 13 years, primarily as an environmental scientist. Her writing centres around creative non-fiction, specifically memoir and nature writing. The landscapes of western Canada are her main inspiration.

WaterWiredAll things freshwater: news, comment, publications and analysis from hydrogeologist Michael E. Campana, Professor at Oregon State University and Technical Director of the AWRA.

I doubt I would have paid much attention to the copyright implications of the Zoom platform I'm using to teach my classes if this publication had been issued several months ago. Why not? I had no idea that the appearance of COVID-19 would force me and many others to use Zoom in place of live events.

For best results, read the report online version (click on the title above) so that you can use the embedded hot links.

Introduction

Unauthorized public performance or display of a copyrighted work generally gives rise to liability for copyright infringement; however, current law exempts certain activities from infringement when performed in person. For example, singing a copyrighted hymn or performing a religious work during a religious service at a place of worship is exempted from infringement liability, as is the performance or display of a copyrighted work by an instructor while teaching in the classroom.

As a result of the COVID-19 social distancing policies, however, groups have begun webcasting what were previously in-person gatherings. (“Webcasting” is the practice of broadcasting an event live over the internet.) Places of worship may webcast their usual religious services. Schools and universities may webcast classes. Copyright law, however, treats transmissions like webcasting differently than in-person activities in some circumstances. Thus, certain activities generally exempt from copyright liability when performed in person may be infringing when they are transmitted or webcast over the internet. This Sidebar provides a background on copyright law before outlining possible approaches to exempting transmission of these events from copyright infringement liability.

Legal Background

A copyright gives its owner the exclusive right to take or authorize certain actions involving the underlying work. Specifically, the copyright owner has the exclusive right to, among other things, reproduce or distribute the copyrighted work, or perform or display the copyrighted work publicly. If any person violates the copyright owner’s exclusive rights (for example, by performing the copyrighted work publicly without the owner’s permission), then that person has infringed the copyright.

A person held liable for copyright infringement may be subject to a court order to stop infringing (an “injunction”) or may be required to pay damages. The amount of damages may be both the copyright owner’s actual damages and any profits made by the infringer, or an amount set by statute (“statutory damages”). Statutory damages may be set between $750 and $30,000 “as the court considers just,” but may be increased if the infringement was willful. The prevailing party in an infringement action may also be able to recover its attorney’s fees. In certain circumstances, copyright infringement may even be a criminal offense.

Congress has exempted certain actions from copyright infringement in 17 U.S.C. § 110 (§ 110), as well as in other provisions such as the one governing “fair use” (discussed below). In § 110, Congress created a list of acts that it explicitly defined as not infringing the copyright owner’s exclusive rights, notwithstanding that those actions involve using copyrighted works in a way that would ordinarily infringe. As explained below, two of those exemptions relate to in-person teaching activities and religious assemblies.

I'm skipping the 'meat' related to fair use, distance worship and learning to post this final item:

Implications for Congress

Congress could approach the copyright issues surrounding remote worship and distance learning in a number of ways. One option would be to maintain the legal status quo. There are existing services that sell licensing bundles for churches to obtain permission to use certain copyrighted works. As discussed above, webcasters could rely on the existing fair use defense and specific exemptions for some uses. As a practical matter, copyright holders may be reluctant to sue educational or religious institutions for infringement, for public relations and other reasons.

Congress could also make the fair use provision easier to employ. For example, Congress could broaden or remove one or more of the factors considered when determining whether a particular use of a copyrighted work is fair. Congress could also legislate to place the burden of proof on the copyright owner, rather than on the religious or educational institution, in fair use cases.

Another option would be to amend or add to the existing protections in § 110. For example, the classroom exemption in § 110(1) and worship exemption in § 110(3) could be amended to include performance and displays transmitted over the internet, or the requirements to fall within the coverage of the distance learning exemption in § 110(2) could be changed. This would not be the first time that the § 110 exemptions have been amended to address challenges introduced by new technology.

The House of Representatives Judiciary Committee Report for the TEACH Act (“TEACH Act Report”) argued that the prior language of § 110(2) was “inapplicable to the most advanced delivery methods for instruction.” “Without an amendment to accommodate these new technologies,” the TEACH Act Report concluded, “the policy behind the 1976 act would be increasingly diminished.” Congress could use the same rationale to justify modification of the existing exemptions in § 110. Moreover, Congress could render any amendments to the § 110 exemptions temporary by, for example, having them expire on a particular date or when the current national emergency ends.

Enjoy!

"When stupidity is considered patriotism, it is unsafe to be intelligent." - Isaac Asimov

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